State v. PattersonState v. Patterson
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 218
Judgment Reversed and Cause Remanded
Date of Decision: April 13, 2020
APPEARANCES:
W. Alex Smith for Appellant
Phillip A. Riegle for Appellee
{¶1} This appeal, having been placed on the accelerated calendar, is sua sponte being assigned and considered on the regular calendar pursuant to
{¶2} Defendant-appellant, Cornelius Patterson, Jr., (“Patterson”) appeals the August 29, 2019 judgment entry of resentencing of the Hancock County Common Pleas Court. For the reasons that follow, we reverse.
{¶3} On October 27, 2009, the Hancock County Grand Jury indicted Patterson on four criminal counts including: Count One of aggravated murder in violation of
{¶4} The case proceeded to a jury trial on February 8-11 and 14-15, 2011. (Doc. Nos. 165, 170). On February 15, 2011, the jury found Patterson guilty of Counts One, Two, Three, and Four and the specifications as to Counts One, Two,
{¶5} On Deсember 26, 2018 and February 14, 2019, Patterson entered his notices of appearance as counsel, pro se, pursuant to State v. Gibson, 45 Ohio St.2d 366 (1976) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975). (Doc. Nos. 283, 284). Thereafter, Patterson filed motions in the trial court to correct a void judgment and to waive payment of a deposit and the imposition of court costs/fees.2 (Doc. Nos. 285, 286). The Statе filed its memorandum in opposition to Patterson’s motion to correct a void judgment. (Doc. Nos. 287, 288).
{¶6} The trial court granted Patterson’s motion to correct a void judgment and scheduled a video-conferenced-resentencing hearing for June 27, 2019 under
Assignment of Error
The Trial Court Erred By Not Allowing Mr. Patterson to Be Represented by Counsel [sic]
Standard of Review
{¶8} Under
Analysis
{¶9} Here, Patterson was resentenced to correct the trial court’s improper-postrelease-control-sanction notification at his original sentencing hearing pursuant to
(C) On and after the effective date of this section, a court that wishes to prepare and issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this section shall not issue the correction until after the court has conducted a heаring in accordance with this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the prosecuting attorney of the county, and the department of
rehabilitation and correction. The offender has thе right to be physically present at the hearing, except that, upon the court’s own motion or the motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. An appeаrance by video conferencing equipment pursuant to this division has the same force and effect as if the offender were physically present at the hearing. At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of сonviction.
(Emphasis added.)
{¶10} Initially, we note that Patterson notified the trial court, twice, that he intended to engage in self-representation by virtue of his designations of counsel filed on December 26, 2018 and February 14, 2019. (Doc. Nos. 283, 284). After filing his notices of self-representation, he filed a motion to correct a void judgment in the trial court. (Doc. Nos. 287, 288). Importantly, Patterson never requested the appointment of counsel in the trial court at any time prior to the resentencing hearing. (June 27, 2019 Tr. at 7-8); (Doc. No. 312).
{¶11} Here, Patterson argues that he was denied his right to counsel and directs us to the following exchange with the trial court and Patterson that occurred during his resentencing hearing.
[Trial Court]: And as I indiсated in the judgment entry from April 9, 2019, you are not subject to a five-year PRC sanction. In the event, you would be granted parole you could be subject, however, to an optional three
It is optional because the Department of Corrections is not required to put you on PRC for a felony of the third degree, it’s discretionаry under the statute. If, however, within the discretion of the Department of Corrections, if they were to decide that you should be placed on PRC, for Count 4, tampering with evidence, they could choose to put you on PRC for as long as three years.
Do you understand that?
[Patterson]: No, I do not.
[Trial Court]: What is it that –-
[Patterson]: I’m not understanding. Hold on, hold on, Your Honor.
I don’t understand, first and foremost, I don’t understand how you can just go and give me a PRC off of my indefinite sentence and then turn around and put it on a regular sentence and make it discretionary, first of all.
(Emphasis added.) (June 27, 2019 Tr. at 6-7); (Doc. No. 312). Thereafter, Patterson goes on to argue the following:
[Patterson]: Plus, relying on State v. Moore, this is not considered to be present in open court. This is a critical stage of my sentencing and I have a right to be present at this point and time now, you have the ability to take PRC of my invalid sentence and yet turn around аnd resentence me.
That’s a critical step because PRC is part of the actual sentence, relying upon a case that is directly out of your courtroom, State versus Todd [sic] (inaudible) and relying on State versus (inaudible), was the Ohio Supreme Court case which clearly states I have a right to not stand alone against the State at any given time in the proceedings.
[Patterson]: (Interrupting) That’s not true, Your Honor.
[Trial Court]: - - you filed the motion on your own behalf, indicating that you were going to be representing yourself. You did not make a request in advance of this hearing to have an attorney appointed for you. And, again, this is not a hearing that I have discretion over. I don’t have a choice about what I advise you of for PRC.
Judge Niemeyer incorrectly ordered five years of PRC because he believe that’s what the statute required. You were correct in - -
[Patterson]: Which is true.
{¶12} The Supreme Court of Ohio has determined “that the right to counsel attaches at a resentencing hearing conducted for the limited purpose of imposing statutorily mandated postrelease control”. State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, ¶ 17. However, that does not end the inquiry, “[w]hile a defendant has a right to counsel, the defendant may also waive that right when the waiver is voluntary, knowing, and intelligent.” State v. Petaway, 3d Dist. Logan No. 8-05-11, 2006-Ohio-2941, ¶ 8, citing State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the syllabus, citing Faretta, 422 U.S. at 806, 95 S.Ct. at 2525.
{¶13} “In order to establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.” Gibson at paragraph two of the syllabus.
[F]or the defendant’s waiver of counsel to be valid “such waiver must be made with an apprehension of the [nature of the] charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”’
State v. Owens, 3d Dist. Allen No. 1-07-66, 2008-Ohio-4161, ¶ 10, quoting Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316 (1948).
However, the United States Supreme Court ‘ha[s] not * * * prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 101, quoting Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379 (2004). Stated differently, “the sufficiency of the trial court’s inquiry will depend on the totality of the circumstances * * *” State v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733, ¶ 26, citing City of Akron v. Ragle, 9th Dist. Summit No. 22137, 2005-Ohio-590, ¶ 11-12. See State v. Alexander, 4th Dist. Ross No. 15CA3492, 2016-Ohio-5015, ¶ 4 (“[A]ppellate courts should * * * independently examine the record to determine whether the totality of circumstances demonstrates a knowing, intelligent, and voluntary waiver of the defendant’s right to counsel.”), citing State v. Mootispaw, 4th Dist. Highland No. 09CA33, 2010-Ohio-4772, ¶ 21.
{¶14} In addition, “
{¶15} “As the right to self-representation and the right to counsel are ‘two faces of the same coin,’ the assertion of one necessarily requires the waiver of the other.” United States v. Pryor, 842 F.3d 441, 448-449 (6th Cir.2016), citing United States v. Conder, 423 F.2d 904, 908 (6th Cir.1970), quoting United States v. Plattner, 330 F.2d 271, 276 (2d Cir.1964). Because the “dangers and disadvantages of self-representation during trial are so substantial,” a trial court must make a “searching or formal inquiry” before permitting a waiver of the right to counsel although no such inquiry is required for the correlative waiver of right to self-representation.7 Hill v. Curtin, 792 F.3d 670, 677 (6th Cir.2015) (en banc).
{¶16} The important distinction between the two rights comes into play when considering the waiver analysis. See Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc). Unlike the right to counsel, the right of self-representation can be waived by a failure to assert the right. Id. at 610-611. “Even if a defendant asserts self-representation, the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request
The right of self-representation, then, is waived if not asserted, while the right to counsel is not. Since the right of self-representation is waived more easily than the right to counsel at the outset, before assertion, it is reasonable to conclude it is more easily waived at a later point, after assertion. * * *. A waiver may be found if it reasonably appears to the trial court that defendant has abandoned his initial request for self-representation * * *.
Id. Herе, the record reveals that Patterson was abandoning his previously filed notices of self-representation. (See June 27, 2019 Tr. at 6-7); (Doc. Nos. 283, 284, 312).
{¶17} Because self-representation entails the waiver of the Sixth Amendment right to counsel, a trial court’s evaluation of a defendant’s request for self-representation “is fraught with the possibility of error.” Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.1990).
A trial court can commit reversible constitutional error by either improperly granting a request to proceed pro se—and thereby depriving the individual of his right to counsel—or by denying a proper assertion of the right to represent oneself, and thereby violating Faretta.
In recognition of the thin line a trial court must travеrse in evaluating demands to proceed pro se, and the knowledge that a shrewd litigant can exploit this difficult constitutional arena by making ambiguous self-representation claims or later waiver of self-representation to inject error into the record, an individual must clearly and unequivocally assert the desire to represent himself.
Id., citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Fant, 890 F.2d at 409; Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989); Brown, 665 F.2d at 610.
{¶18} Without counsel, Patterson was in the position of relying upon the trial court’s advice regarding the nuances of the limited-resentencing-hearing process. The opportunity to consult with counsel would have been helpful for Patterson to discuss the interpretation of our previous rulings and to navigate the legal terminology being used by the trial court. Thus, the presence of counsel in this instance would not have been superfluous. See State v. Peace, 3d Dist. Hancock No. 5-12-04, 2012-Ohio-6118, ¶ 18, (concluding that “the presence of counsel is not superfluous in limited-resentencing hearings conducted to properly impose postrelease control.”).
{¶19} We recognize that Pаtterson bears some responsibility for creating the murkiness of the issue before us by not clearly and unequivocally asserting his Sixth Amendment right to counsel after having previously clearly and unequivocally asserted his right to self-representation. Nevertheless, the trial court should have
{¶20} Accordingly, we sustain Patterson’s assignment of error.
{¶21} Having found error prejudicial to the apрellant herein in the particulars assigned and argued in his assignment of error, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
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